Wednesday, 14 December 2011

After fleeing Peru in 2001 because he was persecuted for being gay,
Jair Izquierdo settled in New Jersey, met his future husband, and
started a life with him. But that life was brought to an abrupt halt
last year when Izquierdo was deported for being in the country
illegally.

Izquierdo and his partner, American citizen Richard Dennis of Jersey
City, N.J., are one of thousands of binational same-sex couples in the
United States that struggle with deportation. They were joined together
by a civil union, but Izquierdo was an illegal immigrant, and because
immigration law is federal, rather than state, Dennis was unable to
sponsor him for citizenship.

“Most people don’t even realize how screwed up it is,” Dennis said of
the current immigration law and how it applies to gay couples. “There’s
so much subjectivity and fear and misinformation.”

The Defense of Marriage Act

The problem for couples like Dennis and Izquierdo is the Defense of Marriage Act,
which ruled in 1996 that marriage is a legal union between a man and a
woman. Because of DOMA, the federal government and its agencies,
including those responsible for immigration benefits, are prohibited
from recognizing same-sex marriages and civil unions.

“It’s very hard to explain to the many people who call us every day
because it’s so patently unjust,” said Victoria Neilson, the legal
director at Immigration Equality, a national organization that advocates
for the rights of lesbian, gay, bisexual and transgendered immigrants.

In February, the Obama administration announced that it would no longer continue to defend DOMA in
the courts. However, it will be enforced until Congress or the Supreme
Court votes to strike it down. In the meantime, the administration
claims to be focusing on immigrants with criminal records.

This makes sense, Neilson said, because the backlog of immigration
cases in each state would ease up, and many immigrants with clean
records and ties to the community would have their cases closed. But
whether this theory is being put into practice is a source of
contention.

“It doesn’t really seem like the word has reached the field of the actual attorneys and ICE
agents who are charged with deciding whether to put people in removal
proceedings or not,” Neilson said, referring to the people working for
Immigration and Customs Enforcement (ICE).

Dennis echoes Neilson’s concerns.

“They talk tough about secure communities and weeding out criminals,
but I think that they just want to deport as many people as possible,”
he said. “So the rhetoric doesn’t match the actions and it doesn’t match
reality.”

Fighting for “Traditional” Marriage

Immigration Equality advocates for same-sex marriage so couples like
Dennis and Izquierdo can be together. On the other side of the issue are
the signers of the Manhattan Declaration, who believe in the
traditional marriage view that DOMA reinforces.

Helen Alvare, a professor at the George Mason University School of
Law, signed the declaration because she believes that maintaining
traditional marriage protects children. She wants the government to
consider new reforms that scholars and legislators have come up with
that would result in what she calls “equal recognition.”

Then she heard the story of Dennis and Izquierdo. She called their
separation “a huge tragedy in their lives,” but was left unconvinced
that the laws of marriage should be changed.

“Is this situation really enough to overturn the argument that we
really need to make something special of opposite sex unions?” Alvare
asked. She said that traditional marriage still needs to be honored
above all.

For couples like Dennis and Izquierdo, she suggested going some other way than “the marriage route.”
“Changing marriage as a tool for [immigration benefits] is not enough.”

Other Options

According to the Williams Institute at UCLA,
there are an estimated 28,500 binational same-sex couples living in the
United States. The options are limited if the foreign partner is in the
country illegally, especially if it has been for longer than a year,
like it was for Izquierdo.

“If someone’s here with a visa and they overstay, under current
immigration law, it’s almost impossible to change from being here
illegally to being here legally within the United States,” said Neilson.
“And if a person leaves the country to try and legalize their status,
if they have been here over a year, they can’t come back for ten years.”

Izquierdo applied for asylum after having been in the country for
five years, and was denied. A series of appeals and requests to reopen
the case have led to a court sending the decision back to the
immigration judge, claiming the reasoning to not reopen were invalid.

Dennis said that they will move to Canada or Europe if Izquierdo
cannot come back to the U.S., a common remedy among binational couples.

“We do see a fair amount of couples who end up giving up on the U.S. entirely and starting a new life in Canada,” Neilson said.

Ending DOMA

Since the current Congress has not passed much legislation,
Immigration Equality is looking to the Supreme Court to repeal DOMA.
Neilson suspects that the earliest this could happen is 2013, so
Immigration Equality is pursuing other legislative actions in the
meantime.

The Uniting American Families Act is pending, a bill that would amend
immigration law to say “permanent partner” where “spouse” exists, so an
American can sponsor his or her partner for immigration benefits.

There’s also the Respect for Marriage Act, which would legislatively
appeal DOMA. Immigration Equality also encourages its clients to call
their political representatives and ask for their help.

“When you work with lesbian and gay immigrant families, you see that
it’s not an abstract right,” Neilson said. “It’s a fundamental desire to
just be with the person you love. And that’s just such a
heart-wrenching situation to talk to someone who finally found the
person they want to be with, and they can’t be with them because of this
unjust law. It’s got to go.”